BusyBox takes out bankrupt opponent in GPL lawsuit

A software developer has convinced a court that an electronics manufacturer …

The person behind a set of GPL-licensed Unix utilities called BusyBox has been engaged in a lawsuit against a dozen consumer electronics companies, accusing them of violating his copyright. The companies allegedly have been distributing hardware (including HDTVs) that includes BusyBox, but then licensing it to consumers under GPL-incompatible terms.

In late July, the judge in the case issued a summary judgement against one of the defendants, Westinghouse Digital Electronics, which stopped participating in the case when it entered bankruptcy protection. The ruling isn't a sweeping victory for the GPL, but it does show that the GPL is compatible with the standards for summary judgement.

BusyBox is a set of command line utilities that are specifically designed to run in constrained embedded environments. At compile time, different capabilities can be left out, reducing the size of the binaries, and efforts are made to make them memory efficient. This makes the software an excellent candidate for use in consumer electronics devices, which seem to have been the items of interest in this case.

The man behind BusyBox, Erik Anderson, had registered a copyright on BusyBox and licensed the code under GPL v2. Represented by the Software Freedom Conservancy, Anderson started complaining to electronics manufacturers that had been shipping hardware with BusyBox but licensing it to users under terms incompatible with the GPL. Shortly afterwards, having failed to receive satisfactory responses, Anderson sued, later adding further defendants.

Westinghouse, which made digital TVs, had initially hired lawyers to represent it, but then entered a form of bankruptcy protection as the discovery phase of the suit started. In the end, it never responded to requests for documents, and its lawyers were told that their services were terminated (they finally asked to withdraw from the case). Anderson and the SFC then asked for a judgment against Westinghouse on the grounds that it wasn't participating in discovery.

In her ruling, Judge Shira Scheindlin notes that "Rule 37(b) of the Federal Rules of Civil Procedure permits a court to sanction a disobedient party for failing to comply with a discovery order." In this case, the sanction was a default judgement. "Having accepted all the well-pleaded facts in the Complaint as true, Westinghouse infringed on Plaintiff's copyright," she concludes.

Implicit in that acceptance is that a key feature of the GPL, its requirement that further distributions also be made under the GPL, can be part of a well-pleaded case. That doesn't mean it would hold up for this particular case once trial lawyers have their way with it, but there's no obvious legal shortcoming to its use against Westinghouse.

Also notable here are the damages involved. Since Westinghouse had continued to ship the software after being notified of its copyright issues, Scheindlin ruled that the infringement was willful, and therefore the company deserved a trebling of damages. Despite the fact that this was large-scale, commercial copyright infringement, those damages add up to a total of $90,000.

Basically, Westinghouse gets off easy in comparison with those who have shared music on P2P sites ($675,000 and $1.92 million, in the first two cases to go to trial) because it only shipped a single software package, even though it was done for commercial gain.

Anderson and the SFC will also get legal fees, and will have the right to any unsold inventory that includes Busybox. Unfortunately, they'll have to get in line with the rest of Westinghouse's creditors, so there's a chance they'll see very little of their court-ordered cash.

In the meantime, the court case against the remaining defendants is presumably making its way through discovery, so there's a chance that the GPL may still wind up getting its day in court.

23 Reader Comments

First, yay BusyBox and the Software Freedom Conservacy, but you've got to roll your eyes at the fact that Westinghouse shipped this software of thousands, if not hundreds of thousands of appliances and gets a $30,000 fine, then trebled to $90k due to willful infringement, but P2P sharing has damages of 6-20 times the willful infringement for non-willful infringement to one party.It seems not right at all.

can one now claim there is precedence for how much each infringement worth since one could quite easily calculate <fine>/ <units solds> = $ / infringment. If even they only sold 1000 units (most likely waaay too low) that's 90$ per infingement. Why wouldn't this transfer to the p2p cases? Or would it?

Edit:Just reread a paragraph said this would count as only 1 infringement since it was only 1 piece of software. Do times copied also count as well as number of unique items copied?

I like how the P2P amounts listed were the original and not the numbers later appealed down. Meanwhile, this copyright case is one company infringing on one copyright, unlike the typical P2P case where one person is infringing on thousands of copyrights. But that difference doesn't seem to matter when Ars sets it's bias in articles.

A "well-pleaded complaint" is one that establishes federal jurisdiction. Since this is a copyright case, federal courts have jurisdiction. It's the nature of the cause of action (in copyright) that makes it well-pleaded, but that doesn't mean anything about the validity of the claim in any way whatsoever. It is even less significant than you indicate. See Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149 (1908).

I like how the P2P amounts listed were the original and not the numbers later appealed down. Meanwhile, this copyright case is one company infringing on one copyright, unlike the typical P2P case where one person is infringing on thousands of copyrights. But that difference doesn't seem to matter when Ars sets it's bias in articles.

Except you're ignoring two things in your two assertions. One is that the pleaded down numbers were not accepted by any of the parties involved, IIRC.The other is that the parties involved in the P2P trials were not accused or found liable of infringing on thousands of copyrights, just a few.

Exactly. Westinghouse is going bankrupt and decided that it wasn't worth paying lawyers real money to defend the suit. The judgment will likely never be collected, so it doesn't matter much to Westinghouse. Whether CH11 or CH6 bankruptcy courts do something interesting like assign the derived code to the BusyBox creators waits to be seen, but could be a decent resolution that would keep Westinghouse happy (they maintain more money to pay off other creditors), BusyBox creators are happy since they are really after the code not the $$ (assumption), and creditors because they are after money/assets not infringing code.

The other defendants are still in the case and are proceeding through discovery. I imagine there will be a settlement, but maybe it will go to trial.

Exactly. Westinghouse is going bankrupt and decided that it wasn't worth paying lawyers real money to defend the suit. The judgment will likely never be collected, so it doesn't matter much to Westinghouse. Whether CH11 or CH6 bankruptcy courts do something interesting like assign the derived code to the BusyBox creators waits to be seen, but could be a decent resolution that would keep Westinghouse happy (they maintain more money to pay off other creditors), BusyBox creators are happy since they are really after the code not the $$ (assumption), and creditors because they are after money/assets not infringing code.

The other defendants are still in the case and are proceeding through discovery. I imagine there will be a settlement, but maybe it will go to trial.

They are not going through actual bankruptcy, but a general assignment under state law BTW.

Also notable here are the damages involved. Since Westinghouse had continued to ship the software after being notified of its copyright issues

So penalty for knowingly shipping contested IP for commercial gain far outweighs the P2P several music for personal use.

So, rather than P2Ping for personal use, just start packaging them up and selling them. Apparently that will hurt you less.

MatthiasF wrote:

I like how the P2P amounts listed were the original and not the numbers later appealed down. Meanwhile, this copyright case is one company infringing on one copyright, unlike the typical P2P case where one person is infringing on thousands of copyrights. But that difference doesn't seem to matter when Ars sets it's bias in articles.

Most of publicized P2P case didn't infringe on several thousand copyrights. They infringed copyright of several (20~40) IP; as in they illegally took the ability to distribute those said items from the legal distributor.

So, if they infringed the copyright of several (20~40) IPs and this case infringed a single IP, couldn't we just use simple math? Even if you just used the initial $30k non-trebled judgement, that's between $600,000 and $1,200,000 ($30K X 20 and $30K X 40 respectively). Since the parties involved in both well-known P2P cases admitted to doing it on the stand and almost certainly continued to do it (at least in the Joel Tannenbaum case), couldn't you apply the willful "treble" clause, thereby making the range $1,800,000 to $3,600,000?

In that light, it seems that the actual awards may have been in-line with what seems "reasonable" here. The only difference this time is who is on each side of the case (P2P equals corporation suing individual while BusyBox equals individual suing a corporation).

I am no fan of the **AA, but this doesn't seem to me to be the place to start pointing at what is "reasonable", as it could easily back-fire.

The BusyBox author should have filed individual copyright forms for each source file apparently. Then they could have gotten damages for each and every file. Bonus points for putting each function in it's own file to really multiply the damages.

So, if they infringed the copyright of several (20~40) IPs and this case infringed a single IP, couldn't we just use simple math? Even if you just used the initial $30k non-trebled judgement, that's between $600,000 and $1,200,000 ($30K X 20 and $30K X 40 respectively). Since the parties involved in both well-known P2P cases admitted to doing it on the stand and almost certainly continued to do it (at least in the Joel Tannenbaum case), couldn't you apply the willful "treble" clause, thereby making the range $1,800,000 to $3,600,000?

In that light, it seems that the actual awards may have been in-line with what seems "reasonable" here. The only difference this time is who is on each side of the case (P2P equals corporation suing individual while BusyBox equals individual suing a corporation).

I am no fan of the **AA, but this doesn't seem to me to be the place to start pointing at what is "reasonable", as it could easily back-fire.

Except that Westinghouse seems to have committed "one" act of infringement several thousand or hundred thousand times in that they distributed this unlicensed code in many models of their TVs and other electronics.

Can an IP lawyer here explain why they were only found liable for one count of infringement? I would assume that were I to start a commercial DVD replication and only copy and distribute "Hot Tub Time Machine" thousands or hundreds of thousands of times that I would be on the hook for millions and millions of dollars and criminal liabilities. Why is that not the case here?

A "well-pleaded complaint" is one that establishes federal jurisdiction. Since this is a copyright case, federal courts have jurisdiction. It's the nature of the cause of action (in copyright) that makes it well-pleaded, but that doesn't mean anything about the validity of the claim in any way whatsoever. It is even less significant than you indicate. See Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149 (1908).

Exactly what I wanted to point out. Just to reiterate: The "well-pleaded complaint rule" is a rule of Federal Civil Procedure that simply requires any complaint filed in federal court to have on its "face" something that gives the federal court proper jurisdiction to hear and decide the case (federal question jurisdiction). In other words, a plaintiff suing for a violation of state law cannot file in federal court (unless they are from two different states and meet the amount in controversy threshold; or the claim is based on federal law). Also, a plaintiff suing under state law, but anticipating a defense based on federal law does not meet the well-pleaded complaint rule.

Like John Jenkins said, it is of no significance here and says nothing about the validity of the GPL.